"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, November 3, 2016

New York discriminates in occupational licensing against non-residents - and not only against non-resident attorneys

I wrote on this blog earlier about discrimination by the State of New York against non-resident attorneys - which the U.S. Court of Appeals for the 2nd Circuit allowed and endorsed.

The pretext for such discrimination is that the "residential attorneys" can be served at their home address.

Yet, that "advantage" goes out the door since "residential attorneys" in New York who happily work out of a P.O. Box, are not required to publish their home address, and thus require an investigator to first verify their "home address" before such service.

In any event, with attorney licensing, non-resident attorneys are at least allowed to apply for law licenses in New York and are actually issued licenses - even though they are not allowed, after the 2nd Circuit decision, to practice without a "physical office" in the State of New York.

New York State Department of State went even further with discrimination.

It requires residency in New York as a condition to even apply for a professional license:

Such a condition flat-out blocks non-residents from having practicing regulated professions licensed by New York Department of State, and that is a violation of the Privileges and Immunities Clause of the U.S. Constitution and of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

When you press on "Learn More" link in the upper right corner of the page 

of the professions licensed in this discriminatory way by the NYS Department of State, the link leads you to a blank page.  I tried it several times.

Yet, the list of at least some occupations where NYS Department of State requires a New York state residency in order to issue an occupational license, is provided on the website of NYS Department of State here:

NYS Department of State warns on this page that licenses of

  • Real Estate Brokers;
  • Real Estate "salespersons"; and
  • "Appearance Enhancement Licensees":
    • Cosmetologists;
    • Nail "specialists";
    • Specialists in "esthetics" - whatever that is;
    • Specialists in "natural hair styling" - that would be, must likely, African American hair braiding discriminated against across the United States and subject to several federal lawsuits in other states;
    • Waxing "specialists" and businesses;
    • Barber Operators and businesses -
The above additional professions are also prohibited by NYS Department of State to non-residents of the State of New York.

It is interesting that NYS Department of State does not allow search for suspended or revoked licenses - as, for example, an attorney database allows to looks at suspensions and disbarments.

In a way, then NYS Department treats people who never had a license equally with those whose license was suspended or revoked - unlike NYS Court of Appeals that approved, two days ago, a differential treatment of unauthorized practice of law (which does not appear in the actual UPL statute) between paralegals who never had a law license, and paralegals whose license was suspended or disbarred - while paralegals are not a regulated profession in New York and a law license is not required to work as a paralegal.

Of course, there is absolutely no rational basis as to why only residents of the State of New York are allowed to work in New York in these 30 occupations:

  1. Alarm Installers;
  2. Apartment Sharing Agents;
  3. Apartment Information Vendor;
  4. Armored Car Guards;
  5. Armored Car Carrier;
  6. Athlete Agents;
  7. Bail Enforcement Agents;
  8. "Bedding", whatever that is;
  9. Central Dispatch Facilities - which can be virtual and done on the Internet from any location within the U.S.;
  10. Document Destruction Contractor;
  11. Document Destruction Contractor Branch Office;
  12. Hearing Aid Dispenser;
  13. Hearing Aid Dispenser Business;
  14. Home Inspection;
  15. Private Investigator;
  16. Real Estate Appraiser;
  17. Notary Public;
  18. Proprietary Employer of Security Guards;
  19. Security Guard;
  20. Telemarketing business;
  21. Ticket Reseller;
  22. Ticket Reseller Branch Office;
  23. Watch Guard and Patrol Agency;
  24. Real Estate "salespersons"; and
  25. Cosmetologists;
  26. Nail "specialists";
  27. Specialists in "esthetics" - whatever that is;
  28. Specialists in "natural hair styling"
  29. Waxing "specialists" and businesses;
  30. Barber Operators and businesses

Discrimination against out-of-staters does nothing to protect consumers of services in these professions, shrinks the numbers of service providers, allows resident providers to raise price on services while providing no variety that would have existed if non-residents would be allowed to compete with resident licensees.

In other words, such non-resident-blocking policy of New York Department of State is designed (and likely, by the market players within these licensed professions who usually populate licensing boards) only for anticompetitive purposes of quashing competition and maintaining high prices for the consumer.

Is New York waiting for a federal lawsuit on privileges and immunities grounds?  A lawsuit for which New York taxpayers will have to pay?

I will continue to cover the topic of the wrong uses of occupational licensing, including New York's discrimination against non-residents in allowing to earn a living in regulated professions.

Stay tuned.

No comments:

Post a Comment